Lords Sitting of 24 April 1888

MINUTES.
PUBLIC BILLS—Second Reading—Copyright (Musical Compositions) (61); Tithe Rentcharge*(53); Tithe Rentcharge Recovery and Variation (54).
Report—Electric Lighting Act (1882) Amendment* (75).

MERCHANT SHIPPING (LIFE SAVING APPLIANCES) BILL.—(No. 43.)
(The Earl of Onslow.)
COMMITTEE.
Order of the Day for the House to be put into Committee, read.
Moved, "That the House do now resolve itself into Committee upon the said Bill."—(The Earl of Onslow.)
THE EARL OF RAVENSWORTHsaid, he appealed to the noble Earl in charge of the measure to postpone the Committee stage till he could place certain Amendments on the Paper. He represented the Shipowners' Association of Liverpool, which included all the great Atlantic lines of steamers and the Steam Shipowners' Associations of the Tyne and the Clyde. He had that morning
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only received from the Clyde a series of Amendments of an important character, suggesting an entirely different mode for the constitution of the Consultative Council. If further time were given he would place these Amendments on the Paper.
THE SECRETARY TO THE BOARD OF TRADE (The Earl of ONSLOW)said, the remarks of the noble Earl had somewhat surprised him; the Bill was read a first time on the 16th of March, and a second time on the 22nd of March. On the day the House assembled after the Easter Recess, he put the Committee stage down for that day. Under those circumstances he thought their Lordships would agree with him that there had been ample time for any Amendments to the Bill to be formulated. He admitted that the noble Earl represented a powerful shipping interest, but he might say that, with the exception of one body, the Government had received no intimation that the shipping interest entertained any objection to the Bill. In deference, however, to the important interests represented by the noble Earl, he would accede to his request but, looking to the importance of the Bill reaching the other House at an early date, he could not undertake to postpone the Committee stage beyond Monday next.
Motion (by leave of the House) withdrawn.
Committee of the Whole House put off to Monday next.

COPYRIGHT (MUSICAL COMPOSITIONS) BILL.—(No. 61.)
(The Earl of Onslow.)
SECOND READING.
Order of the Day for the Second Reading, read.
THE SECRETARY TO THE BOARD OF TRADE (The Earl of ONSLOW)in moving that the Bill be now read a second time, said, that it was not a Government measure, having been introduced into the other House of Parliament by a private Member. The Attorney General, however, made some modifications in and accepted it, and for that reason he was entrusted with the charge of it in their Lordships' House. It was a very short Bill, and was intended to remove what was now a very great abuse. Under the existing Law of Copyright the person owning the copyright of any musical

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composition might sue for the performance of it without his leave and permission, and was entitled to obtain a minimum penalty of 40 s. and costs. That had been found to operate very harshly, more particularly in respect of copyright obtained under an old Act of Parliament. In former days the copyright of the piece was divorced from the right of performing that piece, the consequence of which had been that, where a person had parted with the copyright of his piece, he still retained the right of performing it. This right he might sell, and the purchaser might sue all over the country and obtain large costs, with 40 s. damages at least, from any person performing the piece. He was informed that costs had been obtained not only against the persons who sung the song, but against the person who played the piano and the person who got up the concert. In one instance a penalty had been exacted from a child of 13, who had sung at a concert given in aid of a charity, and all the proceeds of the concert were absorbed in the costs of the prosecution. The Bill provided that in future the amount of damages to be awarded in respect of each unauthorized representation should be such a sum as in the opinion of the Court or Judge might be deemed reasonable, and he might award a smaller sum than £2, and the damages might be nominal. The 2nd clause left the costs of the action or proceedings in the absolute discretion of the Judge. The result would be to meet the justice of every case, and to prevent what had hitherto amounted to a gross system of blackmailing. The subject was dealt with by the Royal Commission on Copyright which sat in 1878, which recommended that the owner of the composition should only be entitled to recover damages or compensation according to the damage sustained, and that there should be no minimum penalty for an unauthorized performance. It was that recommendation which the Bill now sought to carry into effect.
Moved, "That the Bill be now read 2a."—(The Earl of Onslow.)
LORD BRAMWELL, in moving that the Bill be read a second time that day six months, said, that the object of the Bill was to confiscate certain rights which certain people now
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possessed. At the present time a man might compose a song and might retain the right of publishing it, or he might part with it; but in addition to that he had the exclusive right of representation, and anyone who represented or sang the song without the permission of the owner was liable to pay the owner a minimum amount of £2 for damages. Whoever had composed the song retained the exclusive right of representation, and whoever purchased that exclusive right could proceed against anyone who infringed it to recover the liquidated sum of £2 at least, and any further damages he could prove. In this Bill this £2 was called a penalty, but it was not. That was proved by the case of "Fitzball v Brook" (6 Q. B., p. 873). It was incorrect to say that it was a penalty. It was a stipulated debt, which the owner of the right could recover from anyone who sang a song without his licence. If their Lordships would look at the Statute Book they would not find a word about a penalty mentioned in it. The case stood thus. Every man who had the right of representation, either because he had composed a song or purchased the right from the composer, was entitled to recover £2 every time the song was sung without his consent. He was to have, instead, a right to such damages as he could prove—an idle provision, for of course he could not prove that he was damaged by the song being sung. Why should his right be taken from him? If this Bill were only prospective the case would be different, but it was applicable to existing rights. He submitted that those rights ought not to be taken away, and that the Bill would establish a mischievous precedent. The Bill was wrong in taking away from people a right which they at present possessed and for which they had paid money. With regard to the cost of these proceedings, he should say that they ought to be like the costs of all other proceedings, and therefore it would be as well that some such provision as that contained in Section 2 of the Bill should exist. Again, the Bill provided that the proprietor of a place of entertainment should not be liable for the singing of a song unless it could be shown that he had wilfully caused it to be sung. He thought that was a very reasonable proposition, and, indeed, he doubted whether

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the Courts had not sometimes said that people were liable who ought not to have been made liable.
Amendment moved, to leave out ("now") and add at the end of the Motion ("this day six mouths.")—(The, Lord Bramwell.)
THE EARL OF SELBORNEsaid, he thought the noble and learned Lord had rather argued against his own Motion, inasmuch as he admitted that two out of the four clauses in the Bill were very good clauses indeed.
LORD HERSCHELLsaid, that the changes embodied in the Bill were recommended by persons who had not the reputation of disregarding rights of property. Among the Members of the Royal Commission appointed to consider the subject were the Duke of Rutland, the Earl of Devon, the present Secretary of State for the Colonies, Mr. Justice Stephen, and other highly-respectable persons, who certainly were not disposed to interfere with rights of property. He supported the provisions in this Bill, inasmuch as he was himself on the Commission which recommended the change in the law.
THE LORD CHANCELLOR (Lord HALSBURY)said, he confessed that this was a matter in regard to which there was a divided opinion, and he thought it involved a greater principle than some noble Lords seemed to imagine. It raised the question whether property of this description was to be protected or not. It was not necessary for the Legislature absolutely to fix what the damages ought to be; the existence of a right to these damages ought to be treated as property. The product of a man's brain ought to be protected as much as any other kind of property, but under the general law it was left absolutely without protection. If without some such provisions as were contained in the Bill a man were to bring his action, it would be argued that it was idle to suppose that any damages had been suffered from the singing of a particular song on a particular occasion. In most cases it would be true. But it would be a different thing to say that this property should be left without any protection at all.
THE SECRETARY OF STATE FOR THE COLONIES (Lord KNUTSFORD)paid, he did not care whether the 40 s.
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fine was strictly recoverable as penalty or damages; but the right of copyright was preserved to the composer, and the Bill left it to the County Court Judge to decide what compensation should be given to the composer. Before the Royal Commission on Copyright, Sir Arthur Sullivan and other composers and publishers were unanimous that the existing Act required amendment. As regarded the question of damages, Sir Arthur Sullivan, and persons representing Messrs. Boosey, Messrs. Chappell, and Messrs. Novello, thought that the highest damages for singing a song might be assessed at 1s., and it was even suggested that the amount should be fixed at 6d. If the noble and learned Lord opposite had taken the trouble to read the evidence given before the Commission, he would have seen that practically only one gentleman—a Mr. Wall, who represented a small association with a long name—"The Authors', Composers', and Artists' Copyright and Performing Right Protection Association"—opposed the Bill. This gentleman had three clients, and Ids plan was to watch the occasions on which these songs were sung, and then to pounce down on the giver of the entertainment or proprietor of the hall where the song was sung. It was very desirable that the depredations of this musical hawk should be stopped, and the Bill would effect that purpose. He hoped they would read it a second time, and that the Committee stage would be taken at an early date.
On Question whether the word ("now") shall stand part of the Motion, resolved in the affirmative; Bill read 2a accordingly, and committed to a Committee of the Whole House on Monday next.

TITHE RENTCHARGE RECOVERY AND VARIATION BILL.—(No. 54.)
(The Marquess of Salisbury.)
SECOND READING.
Order of the Day for the Second Reading, read.
Moved,"That the Bill be now read 2a."—(The Marquess of Salisbury.)
EARL DE LA WARRsaid, he had a Petition to present from owners of land and other agriculturists praying for a re-adjustment of tithe rent-charge, and inviting attention to the opinions of a

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conference lately held at Reading, which was attended by representative agriculturists from 11 counties—namely, Berks, Oxon, Hants, Wilts, Surrey, Kent, Essex, Middlesex, Bucks, Bedfordshire, and Devonshire. The resolutions carried unanimously were to the effect that a re-valuation was necessary where tithe rent-charge bore an unfair ratio to the annual value of the land, and that no settlement of the tithe question would be satisfactory which did not free the land from a portion of the burden which was placed upon it in the days of Protection. He believed that this, to a great extent, represented the opinion of a large portion of the landowners and agriculturists, who desired to see the tithe question settled upon a fair basis, such as the altered circumstances of agriculture required. But the Bills of which the noble Marquess had moved the second reading did not touch this part of the question, save only as regarded the alteration of taking the corn averages of three years instead of seven, which seemed to him to be a change of doubtful operation. The real grievance would in no way be removed by these Bills. The grievance of the agriculturists was that while the value of the produce of the land, which was the basis of the rent-charge assessment, had decreased 30 per cent or more, no corresponding diminution had been made in the tithe rent-charge. It was true it varied slightly with the price of corn, but the basis upon which the tithe commutation was made—namely, the price of corn in 1836, remained unaltered. The price then was about 7s. a-bushel, whereas it was now about 4s. It was a re-adjustment of this and adaptation of the rent-charge to the present prices of agricultural produce which was required. The Bills before them, if they passed, would leave things much as they were. He could not see that relief would be afforded to any class, or that it would be in any way a settlement of a question which was becoming more and more a very serious one. The small occupier of his own land—and this was a very numerous class—would in no way be relieved. The tenant farmer would have to pay in additional rent what he before paid in tithe rent-charge, and the landowner, instead of being relieved, would have the unwelcome task imposed upon him of raising his rent to pay the tithe-
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owner. He believed the only course which would be a real and lasting remedy for a question which was one of increasing difficulty would be that Her Majesty's Government should offer such a mode of redeeming the tithe rent-charge as would enable the tithe-owner and the tithe-payer to make a reasonable and satisfactory arrangement.
THE EARL OF KIMBERLEYsaid, he would remind the noble Earl that the object of the Bill was to provide, not for a re-adjustment of tithes, but a more expedient and speedy mode of recovering them than that which at present existed. Upon the whole, he preferred the method of last year as being more practicable, inasmuch as it substituted the owner for the occupier. Although the present Bill appeared to relieve the tithe-owner of the necessity of going to the tenant, the tenant was the person to whom application would have to be made after all. The tenant would find that the change which made the tithe part of the rent was not a practical relief from the state of things of which he now complained. It was true there would not still be the power to proceed by distress. There was one thing in the Bill which was distinctly unfair to the owners of property, and that was that the charge recovered under the order of the Court was to be thrown not only upon the land in question) but upon any other lands which might be held by the same occupier under the same landlord, or any land that he might hold in the same parish. Observe the effect of this. It would have the effect of charging lands with tithes which were not liable to tithes. That was a distinct violation of the rights of property, as it seemed to him, for there was no right whatever to levy tithe directly or indirectly on such lands, and to that part of the Bill he altogether objected. He greatly feared that the Bill would not succeed in its objects, but he should be glad if his objections were met. He did not desire, however, to offer any serious opposition to the Bill.
LORD ADDINGTONsaid, there had been a great deal of false argument raised upon the inevitable position which the tenant occupied with reference to this matter; but it was plain that the landlord could only discharge his obligation through an agent, and where could he find an agent more ready to his

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hand than the tenant, for this reason, that the tenant received the produce which paid the tithe? The more he examined and considered this question, the more thoroughly it appeared that the Act of 1836 was an exceedingly wise Act, and it never would have been found fault with but for the fanatical movement which had mixed up with the question of agricultural depression a number of other more irritating subjects. If they broke up the present system and took into account the present state of prices, they would have to consider the variations in the price of produce in different districts. The tenant farmers had nothing to do with the incidence of tithe. No doubt he now suffered, and suffered severely, as all connected with agriculture had suffered, from the fall of prices; but there was no way of benefiting either the tenant or the tithe-owner by any change in the law as to the collection of tithe. There was no stronger claim than that of the tithe-owner; it was also the most ancient, and took precedence of the land tax and all other charges. Such a claim the Government was bound to support. To do anything to impair it simply because it was inconvenient or unpleasant appeared to him to be a lowering of the dignity of the Government, and a shirking of the duties which the Government ought to discharge. It was not to be endured that because debtors did not like to pay, therefore creditors must take a commutation. If the Bill went into Committee he would take the opportunity of suggesting what, in his opinion, would be certain improvements in the Bill. In the meantime he submitted that the right and title of the tithe-owner were clear and unquestionable, and he deprecated any change which would inflict upon him a loss of income, which in the circumstances would be most serious and perfectly uncalled for.
LORD BRAMWELLsaid, he was of opinion that the Bill in various of its clauses, particularly Section 3 and Subsection 2 of Clause 4, would require to be amended in Committee, in order to guard against its operating in an inequitable manner. With reference to the noble Marquess's other Bill, which he pointed out only applied to new tenancies, and therefore, as it stood, would have but a scanty operation indeed, he was of opinion that it would not be
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difficult by proper adjustment to provide for its application to existing tenancies.
THE ARCHBISHOP OF CANTERBURY (Dr. BENSON)said, he should be ungrateful if he did not, on the part of the clergy, express their sense of the pains and personal labour and the desire to do justice to them which the noble Marquess had throughout shown in relation to this subject. The clergy had felt keenly the temporary hindrances to their spiritual work, and they were told that in order to remove these difficulties, and in order better to secure the incomes which would be left to them, they must make some concession, and that concession was understood to be one to the tithe-payer who was in difficulties. He thought that he need scarcely call the attention of their Lordships to the facts of the present position of the clergy. Many of them were already suffering very severely. It had been necessary to raise a very large fund, to be distributed with caution and delicacy, so as to avoid wounding the natural susceptibilities of a suddenly-formed class of sufferers from agricultural distress, and especially from the non-payment of tithe in those cases where the farmers and landowners were quite willing but unable to pay the tithe. The fund was not used for the purpose of rendering assistance in. cases where debtors were quite able to pay tithe, and where there was simply a refusal to pay it. This fund was still being administered. Private help had also been given to clergymen, many of whom would not make their wants known; and still others were suffering who found it intolerable to apply to anyone. The suffering was very considerable from this one matter of tithe, and this Bill would inflict a further loss, which might be reckoned for two years at 8 per cent per annum, if present prices continued, by the substitution of triennial for septennial averages. Their Lordships, then, would hardly expect that the clergy could gladly welcome this Bill as a relief from their difficulties. They might accept it, but it was impossible that they should rejoice in a measure which, in coming to their assistance, nevertheless required that they should sacrifice 8 per cent at once. Strong representations had been made to him on the subject, and the Lower

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House of Convocation had just passed a resolution in general approval and acceptance of the Bill, but suggesting a hope that some means might be found by which the loss under Clause 10 should not be so immediate and so high. But still the clergy accepted this proposed concession as an alternative to the concession of 5 per cent for ever, which was proposed in the Bill of last year. He understood that it was a necessary alternative, one which those who had most anxiously considered the question thought that it was fair to propose and to accept. The concession of 5 per cent proposed last year would have been most unfair upon a very large number of clergymen who bad never had any difficulty in collecting their tithes, would have been most irregular in its operation, and also a lasting sacrifice of the property of the Church. Consequently they preserved the permanent interest of the Church in accepting this immediate loss, great as it was, instead of the perpetual loss of 5 per cent for ever. Looking at the Church as a permanent body with a continuous life, it was, of course, to the interest of the Church to accept this great immediate loss, and to try to do their best to lighten the blow it would inflict on individuals rather than transmit a loss which would be perpetual. With regard to this alteration from seven years' average to three years', it was only fair and candid to admit that if an improvement took place in the prices of agricultural produce the rise would be sooner felt. He only hoped that this might not hereafter be made the occasion of fresh alterations. This measure was felt to be an immediate relief to the landowners, or other tithe-payers, and the clergy desired to show their sympathy with the landowners as they expected sympathy to be shown to themselves. From the resolutions passed by the Lower House of Convocation, and as the result of a largo number of conferences, it was evident that the clergy approved of the substitution, for the sake of the future interests of the Church, of the shorter for the longer average, although at much cost to themselves. They only wished to find some means of breaking the immediateness of the fall. A concession had been made by the clerical tithe-owners, and he hoped that it would be considered as the contribution of the
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clergy towards meeting the general depression of this particular time.
THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY): I shall follow the example set in this debate in not making any observations with respect to the speech of the noble Earl (Earl De La Warr) who opened the debate, not from any want of respect to the noble Earl, but because the question of the re-adjustment of tithes is one of a very large and complicated character, which cannot be dealt with in a few sentences in which it would be very easy to give a false impression. My own view is that at present there is no ground for such a re-adjustment of tithes, nor are the Government prepared to undertake it. It is better, therefore, that we should not now discuss the question. With reference to the criticisms passed on the Bill, of which I cannot complain personally, I think they are to some extent due to a misunderstanding of the objects we have in view. The noble Earl opposite (the Earl of Kimberley) seeks to raise two main objections. One of them was that it was a great injustice to the rights of property to levy tithes, not only on the land from which it was due, but also on other land in the same parish held by the same owners and occupier; but that is the existings law. In Chapter 85 of the Act of 18361 the noble Earl will find it laid down that when any rent-charge shall be arrear, land situated in that parish which shall be occupied by the same person, holding under the same land lord, shall be liable to be distrained upon. It is a very stringent provision, but we have not altered it. The noble Earl also objected that, after all, we came to the tenant as the man who must pay tithe. But consider what the situation is. The tenant, contrary to the policy of the Act of 1836, has promised in numberless instances to pay the tithe. We have just passed a Bill to make such promises impossible for the future; but promises have been made and fulfilled, and money has been collected from the tenant. There can be no question of discharging the tenant from his obligation; the only question is how you obtain the fulfilment of that obligation if he does not discharge it spontaneously. At present the clergyman can distrain, but we say that that is an objectionable

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method, causing great waste in costs and difficulty in the hands of the clergyman, and still more on account of the relations which exist between the clergyman and his flock, which were being seriously endangered. Our object is not to discharge the tenant from obligations voluntarily incurred, but to provide another means of enforcing it without putting the clergyman into this invidious and objectionable position. There are three persons who can obtain the tithe—the clergyman, the landowner, and the County Court Judge. The Bill of this year goes to work more directly than that of last year; and while the County Court Judge will have to be invoked at last, and although when the tenant is forced to pay it is only by execution that it could be forced, the Government place the duty of obtaining the tithe upon the landowner instead of on the clergyman. We say that no rent should be paid until this debt has been discharged, and the landlord will therefore, in his own interest, pay the debt and add it to the rent. It is not possible in the nature of things, unless you are going grossly to violate the sacredness of contract, to relieve the tenant from the promises he has made. All we do is to make the means of enforcing that obligation as little injurious to the peace and harmony of the parish and the effectiveness of the clergyman's administration as we can. That is the main principle of the Bill which I introduced. I understood that the noble and learned Lord (Lord Bramwell) was rather indignant with us because we had not broken existing contracts, and said that from henceforth the landlord must pay, whatever the contract might have been. I confess I heard that opinion with great surprise; the noble and learned Lord is not the teacher from whom we expect such a doctrine. No doubt we should be very glad if we could, by one clause in an Act of Parliament, bring back that state of things in which the landlords should undertake the payment, but we cannot. The only other matter, I think, of importance which has been dealt with in the criticisms to which I have to reply is the 10th clause, changing the term of years over which the average is taken from seven years to three. That provision met with the most indignant remonstrance from the noble Lord below
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the Gangway. I do not admit that this clause does any injustice to anyone. No doubt the change from the use of the seven years' average to a three years' average may be injurious to the landlords on the one side, or to the tithe owners on the other; but we cannot positively know to which side it will be injurious until we have experience of the prices of the next three or four years. All I can say is that the Government, in bringing forward this measure, are not consciously acting in favour of one side or of the other. Of course, it will be for your Lordships to consider whether or not it is expedient to adopt the proposed alteration. For my own part, I have no very strong opinion on the matter; but upon the whole I think that it would be expedient to sanction it, for the reason that a seven years' average is more likely to impose a high tithe upon the landowner when there is a fall in prices, and when, therefore, he is least able to pay it, than would be the case with a shorter average. Upon the whole, the provision appears to me to be a just one. I wish, however, to state frankly that I should not have put forward this proposal unless I had received from a very high quarter an intimation that it would be satisfactory to the clergy, and if they wish it to be withdrawn I will reconsider the subject. Upon the whole I think the proposed alteration a wise one, and one which is likely to be advantageous to all parties. Most of the other objections which have been made to the Bill are for discussion in Committee rather than upon the Motion for the second reading of the Bill.
Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Tuesday the 8th of May next.

PROVISIONAL ORDERS, &c.
MOTION FOR A RETURN.
Moved, That there be laid before the House—
"Return of the several Acts of Parliament empowering the Home Office, the Privy Council, the Board of Trade, the Local Government Board, the Lord Lieutenant in Council, or other public departments, to grant provisional orders, certificates, provisional certificates, or schemes, which require to be sanctioned by Act of Parliament, or to be otherwise confirmed by Parliament; stating, in the case of each Act, whether it applies to

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England, Scotland, Ireland, or the United Kingdom, the official designation of the commissioners or other officers upon whose report or inquiry the provisional order, &c. is granted by the department, whether any inquiry is held in the locality affected by the provisional order, &c., or where, and whether such inquiry is conducted in public meeting, in open court, or how otherwise."—(The Lord Monk Bretton.)
THE PAYMASTER GENERAL (Earl BROWNLOW)said, that some Returns upon this subject were promised last year, and were nearly ready, and if they should be considered sufficient they would save much labour and time.
LORD MONK BRETTONsaid, he would prefer to have a Return in the shape mentioned on the Paper, and which could be easily prepared. His object was to obtain a Return in a short and simple form.
EARL BROWNLOWsaid, that if a Return in a short and simple form would be considered sufficient, there would be no objection to making such a Return.
Motion agreed to.
Return ordered to be laid before the House.
House adjourned at a quarter past Six o'clock, to Thursday next a quarter past Ten o'clock,